Arndt Automatic GmbH

General terms and conditions of delivery for products and services of the electrical industry
(“Green Delivery Conditions” – GL)

for use in business transactions with entrepreneurs
Non-binding recommended conditions of the ZVEI e. V.
As of January 2022

 

Article I: General provisions

1. These General Terms and Conditions shall apply exclusively to the legal relationship between the Supplier and the Purchaser in connection with the deliveries and/or services of the Supplier (hereinafter referred to as "Deliveries"). The Purchaser's General Terms and Conditions shall only apply to the extent that the Supplier has expressly agreed to them in writing. The scope of the deliveries shall be determined by the mutually agreed written declarations.

2. The Supplier reserves all ownership and copyright rights of use and exploitation of cost estimates, drawings, and other documents (hereinafter referred to as "Documents") without restriction. The documents may only be made accessible to third parties with the prior consent of the Supplier and, if the order is not placed with the Supplier, must be returned to the Supplier immediately upon request. These rates and apply accordingly to the Purchaser's documents; however, these may be made accessible to third parties to whom the Supplier has legitimately delegated deliveries.

3. The customer has the non-exclusive right to use standard software and firmware with the agreed features in an unmodified form on the agreed devices. The customer may create a backup copy of the standard software without an express agreement.

4. Partial deliveries are permissible provided they are reasonable for the customer.

5. The term “claims for damages” in these General Terms and Conditions also includes claims for reimbursement of wasted expenses.

 

Article II: Prices, payment terms and offsetting

1. Prices are ex works excluding packaging plus the applicable statutory value added tax.

2. If the Supplier has undertaken the installation or assembly and nothing else has been agreed, the Purchaser shall bear, in addition to the agreed remuneration, all necessary incidental costs such as travel and transport costs and allowances.

3. Payments shall be made free to the Supplier’s payment office.

4. The customer may only offset claims that are undisputed or legally established.

 

Article III: Retention of title

1. The items of the deliveries (reserved goods) for which the purchase price claim is due immediately or for which a payment period of up to and including 30 days after delivery, delivery with installation/assembly or receipt of invoice has been agreed upon, remain the property of the supplier until full payment has been made.

2. In all other cases, the delivered items (reserved goods) remain the property of the Supplier until all claims against the Customer arising from the business relationship have been fulfilled. If the value of all security interests to which the Supplier is entitled exceeds the amount of all secured claims by more than 20 %, the Supplier shall, at the Customer's request, release a corresponding portion of the security interests. The Supplier shall be entitled to choose between various security interests when releasing the security interests.

3. While the retention of title exists, the purchaser is prohibited from pledging or transferring the goods as security and is only permitted to resell the goods to resellers in the ordinary course of business and only on the condition that the reseller receives payment from its customer or makes the reservation that ownership will not pass to the customer until the customer has fulfilled its payment obligations.

4. If the Purchaser resells the reserved goods, it hereby assigns its future claims against its customers from the resale, including all ancillary rights – including any balance claims – to the Supplier as security, without the need for any further specific declarations. If the reserved goods are resold together with other items without an individual price being agreed for the reserved goods, the Purchaser assigns to the Supplier that portion of the total price claim that corresponds to the price of the reserved goods invoiced by the Supplier.

5. a) The Purchaser is permitted to process the reserved goods or to mix or combine them with other items. Such processing shall be carried out for the Supplier. The Purchaser shall store the resulting new item for the Supplier with the care of a prudent businessman. The new item shall be deemed to be reserved goods.
b) The Supplier and the Purchaser hereby agree that in the event of combining or mixing the goods with other items not belonging to the Supplier, the Supplier shall in any event be entitled to co-ownership of the new item in the amount corresponding to the ratio of the value of the combined or mixed reserved goods to the value of the remaining goods at the time of combination or mixing. In this respect, the new item shall be deemed to be reserved goods.
c) The provision regarding the assignment of claims under No. 4 also applies to the new item. However, the assignment shall only apply up to the amount corresponding to the value of the processed, combined, or mixed reserved goods invoiced by the Supplier.
d) If the Purchaser combines the reserved goods with real estate or movable property, he shall, without the need for any further special declarations, also assign to the Supplier as security his claim to which he is entitled as remuneration for the combination, including all ancillary rights, in the amount of the ratio of the value of the combined reserved goods to the other combined goods at the time of combination.

6. Until revoked, the Purchaser is authorized to collect assigned claims from the resale. If there is good cause, in particular in the event of default, cessation of payment, the opening of insolvency proceedings, protest of a bill of exchange, or reasonable indications of excessive indebtedness or impending insolvency of the Purchaser, the Supplier is entitled to revoke the Purchaser's collection authorization. Furthermore, the Supplier may, after prior warning and observing a reasonable period of time, disclose the assignment of security, realize the assigned claims, and demand that the Purchaser disclose the assignment of security to the customer.

7. In the event of seizures, confiscations, or other dispositions or interventions by third parties, the Purchaser must notify the Supplier immediately. If a legitimate interest is demonstrated, the Purchaser must immediately provide the Supplier with the information and documents necessary to assert its rights against the Customer.

8. In the event of breaches of duty by the Purchaser, in particular in the event of default in payment, the Supplier shall be entitled, after the unsuccessful expiration of a reasonable period of grace set for the Purchaser, to take back the goods or to withdraw from the contract; the statutory provisions regarding the dispensability of setting a deadline remain unaffected. The Purchaser is obligated to surrender the goods. The Supplier's taking back or asserting its retention of title or the seizure of the reserved goods does not constitute a withdrawal from the contract unless the Supplier has expressly declared this.

 

Article IV: Delivery deadlines; delay

1. Compliance with delivery deadlines requires the timely receipt of all documents, necessary permits, and approvals to be provided by the customer, in particular plans, as well as compliance with the agreed payment terms and other obligations by the customer. If these requirements are not met in a timely manner, the deadlines shall be extended accordingly; this does not apply if the supplier is responsible for the delay.

2. If the failure to comply with the deadlines is due to
a) force majeure, e.g. mobilization, war, acts of terrorism, riots, or similar events (e.g. strikes, lockouts),
b) Virus and other attacks by third parties on the supplier's IT system, insofar as these occurred despite compliance with the usual care for protective measures,
c) obstacles due to German, US or other applicable national, EU or international foreign trade law provisions or due to other circumstances for which the supplier is not responsible, or
d) If the supplier fails to deliver on time or properly, the deadlines shall be extended accordingly.

3. If the Supplier is in default, the Purchaser may – provided that he can credibly demonstrate that he has suffered damage as a result – claim compensation of 0.5 % for each completed week of delay, up to a maximum of 5 % of the price of that part of the deliveries which could not be used for its intended purpose due to the delay.

4. Both claims for damages by the purchaser due to delayed delivery and claims for damages in lieu of performance that exceed the limits specified in No. 1 are excluded in all cases of delayed delivery, even after expiry of any deadline set for delivery by the supplier. This shall not apply to liability in cases of intent, gross negligence, or injury to life, limb, or health. The purchaser may only withdraw from the contract within the framework of the statutory provisions if the supplier is responsible for the delay in delivery. The above provisions do not involve a change in the burden of proof to the detriment of the purchaser.

5. The Purchaser shall be obliged, at the Supplier’s request, to declare within a reasonable period of time whether he withdraws from the contract due to the delay in delivery or insists on delivery.

6. If dispatch or delivery is delayed at the request of the Purchaser for more than one month after notification of readiness for dispatch, the Purchaser may be charged storage fees of 0.5 % of the price of the items being delivered for each additional month or part thereof, up to a maximum of 5 % in total. The parties remain free to provide evidence of higher or lower storage costs.

 

Article V: Transfer of Risk

1. Even in the case of carriage-free delivery, the risk shall pass to the purchaser as follows:
a) in the case of delivery without installation or assembly, when the goods have been dispatched or collected; at the request and expense of the purchaser, the delivery will be insured by the supplier against the usual transport risks;
b) in the case of delivery with installation or assembly, on the day of acceptance into the company's own premises or, if agreed, after successful trial operation.

2. If the dispatch, delivery, commencement, execution of installation or assembly, acceptance into the Purchaser's own operations or trial operation is delayed for reasons for which the Purchaser is responsible, or if the Purchaser defaults on acceptance for other reasons, the risk shall pass to the Purchaser.

 

Article VI: Installation and assembly

Unless otherwise agreed in writing, the following provisions apply to installation and assembly:
1. The purchaser shall, at his own expense, undertake to provide and deliver in a timely manner:
a) all earthworks, construction work and other ancillary work outside the scope of the industry, including the skilled and unskilled workers, building materials and tools required for this purpose;
b) the supplies and materials required for assembly and commissioning, such as scaffolding, lifting equipment and other devices, fuels and lubricants;
c) energy and water at the point of use, including connections, heating and lighting;
d) at the assembly site, sufficiently large, suitable, dry and lockable rooms for the storage of machine parts, equipment, materials, tools, etc., and adequate work and rest rooms for the assembly personnel, including sanitary facilities appropriate to the circumstances; in addition, the Purchaser shall take the measures to protect the property of the Supplier and the assembly personnel on the construction site that it would take to protect its own property;
e) protective clothing and protective devices required due to the special circumstances of the installation site.

2. Before the start of the installation work, the customer must provide the necessary information on the location of concealed electricity, gas, water pipes or similar systems as well as the necessary static information without being asked to do so.

3. Before the start of installation or assembly, the necessary supplies and materials must be at the installation or assembly site, and all preparatory work must be sufficiently advanced before the start of assembly so that the installation or assembly can begin as agreed and be completed without interruption. Access roads and the installation or assembly site must be leveled and cleared.

4. If the installation, assembly or commissioning is delayed due to circumstances beyond the control of the Supplier, the Purchaser shall bear the costs of waiting time and additional travel required by the Supplier or the assembly personnel to a reasonable extent.

5. The Purchaser shall promptly certify to the Supplier on a weekly basis the duration of the working hours of the installation personnel and the completion of the installation, assembly or commissioning.

6.If the Supplier requests acceptance of the delivery after completion, the Purchaser must complete this acceptance within two weeks. Acceptance shall be deemed to have occurred if the Purchaser allows the two-week period to expire or if the delivery has been put into use – possibly after completion of an agreed test phase.

 

Article VII: Acceptance

The purchaser may not refuse to accept deliveries due to minor defects.

 

Article VIII: Material Defects

The supplier is liable for material defects as follows:
1. Deliveries are free from material defects if, at the time of transfer of risk, they meet the subjective requirements, the objective requirements, and the assembly requirements of Section 434 of the German Civil Code (BGB). If the parties have agreed on the quality of the goods, the question of whether the deliveries meet the objective requirements shall be determined exclusively by this agreement. This sentence does not apply if the last contract in the supply chain is a purchase of consumer goods.

2. All parts or services which exhibit a material defect shall, at the Supplier's discretion, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of transfer of risk.

3. Claims for subsequent performance shall expire within one month from the commencement of the statutory limitation period; the same applies to withdrawal and reduction. This period shall not apply if the law stipulates longer periods pursuant to Sections 438 (1) (Buildings and items for building purposes) and 634a (2) (Construction defects) of the German Civil Code (BGB), in cases of intent, fraudulent concealment of the defect, or non-compliance with a quality guarantee. Claims for reimbursement of expenses by the purchaser pursuant to Section 445a of the German Civil Code (Seller's recourse) shall also expire within one month from the commencement of the statutory limitation period, provided the last contract in the supply chain is not a purchase of consumer goods.

4. The statutory provisions regarding suspension of the expiry, interruption, and restart of the limitation periods remain unaffected. The suspension of the expiry pursuant to Section 445b (BGB) shall in any case end no later than five years after the date on which the supplier delivered the item to the seller. This does not apply if the last contract in the supply chain is a sale of consumer goods or in the cases listed in sentence 3.

5. Complaints about defects by the purchaser must be made immediately in writing.

6. In the case of claims for defects, the purchaser's payments may be retained to an extent that is reasonable in relation to the material defects that have occurred. The purchaser shall not have a right of retention if his claims for defects have expired. If the notification of defects is unjustified, the supplier is entitled to demand reimbursement of the expenses incurred from the purchaser.

7. The supplier shall be given the opportunity to remedy the defect within a reasonable period of time.

8. If subsequent performance fails, the Purchaser may – without prejudice to any claims for damages pursuant to No. 12 – withdraw from the contract or reduce the remuneration.

9. Claims for defects shall not apply, in particular, in the case of only minor deviations from the agreed quality, only minor impairment of usability, natural wear and tear, or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable operating materials, defective construction work, unsuitable building ground, or due to specific external influences not assumed under the contract, as well as in the case of non-reproducible software errors. If the customer or third parties perform improper modifications, installation/removal, or repair work, these and the resulting consequences shall also not be subject to claims for defects.

10. The purchaser's claims for expenses required for subsequent performance are excluded to the extent that the expenses increase because the object of delivery was subsequently moved to a location other than the purchaser's branch, unless the transfer corresponds to its intended use. This applies accordingly to the purchaser's claims for reimbursement of expenses pursuant to Section 445a of the German Civil Code (Seller's recourse), provided that the last contract in the supply chain is not a purchase of consumer goods.

11. The purchaser’s recourse claims against the supplier pursuant to Section 445a of the German Civil Code (BGB) (seller’s recourse) shall only exist to the extent that the purchaser has not made any agreements with his customer that go beyond the statutory claims for defects.

12. The purchaser's claims for damages due to a material defect are excluded. This does not apply in cases of fraudulent concealment of the defect, non-compliance with a quality guarantee, injury to life, body, or health, or intentional or grossly negligent breach of duty by the supplier. The above provisions do not alter the burden of proof to the detriment of the purchaser. Further claims by the purchaser due to a material defect or claims other than those regulated in this Article VIII are excluded.

 

Article IX: Industrial Property Rights and Copyrights; Defects of Title

1. Unless otherwise agreed, the Supplier is obligated to provide the delivery only in the country of the place of delivery without infringing the industrial property rights and copyrights of third parties (hereinafter: Intellectual Property Rights). If a third party asserts legitimate claims against the Purchaser due to the infringement of intellectual property rights by deliveries made by the Supplier and used in accordance with the contract, the Supplier shall be liable to the Purchaser within the period specified in Article VIII, No. 3, and in accordance with No. 4, as follows:
a) The Supplier shall, at its discretion and at its own expense, either obtain a right of use for the deliveries in question, modify them so that the intellectual property right is not infringed, or replace them. If the Supplier is unable to do so under reasonable conditions, the Purchaser shall be entitled to the statutory rights of withdrawal or reduction.
b) The supplier’s obligation to pay damages shall be governed by Article XII.
c) The aforementioned obligations of the Supplier shall only apply if the Purchaser promptly notifies the Supplier in writing of the claims asserted by the third party, does not acknowledge an infringement, and reserves the right to take all defensive measures and negotiate settlements. If the Purchaser discontinues use of the delivery to mitigate damages or for other important reasons, the Purchaser is obligated to inform the third party that discontinuing use does not constitute an acknowledgement of an infringement of intellectual property rights.

2. Claims by the purchaser are excluded to the extent that he is responsible for the infringement of intellectual property rights.

3. Claims by the Purchaser are further excluded if the infringement of intellectual property rights is caused by special specifications of the Purchaser, by an application which was not foreseeable by the Supplier or by the fact that the delivery is modified by the Purchaser or used together with products not supplied by the Supplier.

4. In the event of infringements of intellectual property rights, the provisions of Art. VIII Nos. 6, 7, 10 and 1 shall apply accordingly to the Purchaser's claims regulated in No. 1a).

5. In the event of other legal defects, the provisions of Article VIII shall apply accordingly.

6. Any further claims of the Purchaser against the Supplier and its vicarious agents due to a defect in title or claims other than those regulated in this Article IX are excluded.

 

Article X: Reservation of performance

1. The performance of the contract is subject to the proviso that there are no obstacles due to German, US or other applicable national, EU or international foreign trade law provisions, nor any embargoes or other sanctions.

2. The purchaser is obliged to provide all information and documents required for export, transfer or import.

 

Article XI: Impossibility; Contract Adjustment

1. If delivery is impossible, the purchaser is entitled to claim damages, unless the supplier is not responsible for the impossibility. However, the purchaser's claim for damages is limited to 10 % of the value of that part of the delivery that cannot be used for its intended purpose due to the impossibility. This limitation shall not apply to liability in cases of intent, gross negligence, or injury to life, limb, or health; this does not involve a change in the burden of proof to the detriment of the purchaser. The purchaser's right to withdraw from the contract remains unaffected.

2. If events within the meaning of Art. IV Nos. a) to c) significantly change the economic significance or content of the delivery or have a significant impact on the supplier's business, the contract will be appropriately adjusted in good faith. If this is not economically justifiable, the supplier has the right to withdraw from the contract. The same applies if necessary export licenses are not granted or cannot be used. If the supplier wishes to exercise this right of withdrawal, it must notify the customer immediately after becoming aware of the significance of the event, even if an extension of the delivery period was initially agreed with the customer.

 

Article XII: Other claims for damages

1. Unless otherwise provided for in these General Terms and Conditions, the Purchaser’s claims for damages, regardless of the legal basis, in particular for breach of obligations arising from the contractual relationship and from tort, are excluded.

2. This does not apply to the extent that liability is as follows:
a) under the Product Liability Act,
b) in case of intent,
c) in the event of gross negligence on the part of owners, legal representatives or senior employees,
d) in case of malice,
e) in the event of non-compliance with a guarantee given,
f) due to culpable injury to life, body
or health, or
g) due to the culpable breach of essential contractual obligations.
However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless one of the aforementioned cases applies.

3. The above provisions do not involve a change in the burden of proof to the detriment of the purchaser.

 

Article XIII: Jurisdiction and Applicable Law

1. If the customer is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of the supplier. However, the supplier is also entitled to bring legal action at the customer's registered office.

2. This contract, including its interpretation, shall be governed by German law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

 

Article XIV: Binding nature of the contract

The contract remains binding in its remaining parts even if individual provisions are legally invalid. This does not apply if adhering to the contract would represent an unreasonable hardship for one of the parties.